8 Chi. J. Int'l L. 621 (2007-2008)
Ex Aequo et Bono: Demystifying an Ancient Concept

handle is hein.journals/cjil8 and id is 625 raw text is: ExAequo et Bono: Demystifying an Ancient Concept
Leon Trakman*
Settlement of a dispute ex aequo et bono rather than on the basis of law,
results neither from the nature of the dispute, nor from lacunae in
international law, but solely from the decision of the parties to obtain such a
The ancient concept ex aequo et bono holds that adjudicators should decide
disputes according to that which is fair and in good conscience. Despite its
long history in international adjudication, and even though it is enshrined in the
Statute of the International Court of Justice, the concept of ex aequo et bono is
often avoided on grounds that it operates outside of law, or is deemed to be
contrary to law.
This Article argues that the concept has a valuable and emerging
significance in modern law. It is ideally suited to resolving disputes between
parties who are engaged in complex and long-term relationships or in emerging
fields in which the law is either inadequately developed or unsuitable to resolve
complex disputes.
The Article evaluates the negative conceptualization of ex aequo et bono. It
argues against the overly artificial divide between equitable decisions, which
accord with law, and ex aequo et bono decisions, which by inference do not.
*   LL.M., S.J.D., Harvard; Professor of Law and Immediate Past Dean, Faculty of Law, University
of New South Wales. Research for this Article began while the author was Visiting Professor of
Law at the University of Wisconsin, Madison, in 1999-2000 as Distinguished Visiting Professor,
University of California, Davis, and as Dean of Law at the University of New South Wales in
2006. The author thanks Harold Berman, Stewart Macaulay, Rosemary Rayfuse and the late
Arthur von Mehren for their earlier input, the Social Sciences and Humanities Research Council
of Canada for funding an earlier draft, and the University of New South Wales for a study leave to
write it. For further information on the author's background, see http://www.trakmanassoc.com.
Aron Broches, ed, Selected Essays: World Bank, ICSID, and Other Subjects of Public International Law
231 (Martinus Nijhoff 1995) (quoting Vladimir D. Degan, L'iquiti et le Droit Internalional (Martinus
Nijhoff 1970) (Aaron Broches, trans)).

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